Ian Frame v Justice and Community Safety

[2019] FWC 7590

[2019] FWC 7590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Ian Frame
v
Justice and Community Safety
(C2019/2588)

DEPUTY PRESIDENT KOVACIC CANBERRA, 5 NOVEMBER 2019

Application for review of decision by delegate of the Head of Service in accordance with the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017 – determined that the decision by the Delegate of the Head of Service should be amended such that the Applicant be demoted to the Correction Officer Class 2.3 classification level and be required to undertake and complete Use of Force training but that otherwise the Delegate’s decision should not be disturbed.

[1] On 23 April 2019 Mr Ian Frame (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute in accordance with the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017   (the Agreement)  1.

[2] In short, Mr Frame’s application seeks a review in accordance with clause J6.1 of the Agreement by the Fair Work Commission (the Commission) of a decision by the Delegate of the Head of Service, Mr David Pryce (Deputy Director-General, Community Safety), to uphold earlier findings of misconduct against and amend the sanctions previously imposed.

[3] A conference convened by the Commission on 21 May 2019 failed to resolve the dispute. Directions were subsequently issued with the parties agreeing that the Commission should determine the matter on the papers.

[4] For the reasons outlined below, I have concluded that the sanction determined by the Delegate of the Head of Service should be amended such that Mr Frame be demoted to the Correction Officer Class 2.3 classification level and be required to undertake and complete Use of Force training but that otherwise the Delegate’s decision should not be disturbed.

Background

[5] Mr Frame is employed by the Australian Capital Territory T/A Justice and Community Safety (the Respondent). At the time of the incident (i.e. 3 August 2017) which ultimately resulted in findings of misconduct against Mr Frame he was a Correctional Officer Class 3 (CO3) accountable for the activities of the Court Transport Unit, including the care of detainees and supervision of staff.

[6] In early November 2017 Mr Frame was notified by Mr Jon Peach, Executive Director, ACT Corrective Services, of the commencement of a formal investigation under clause H of the Agreement in respect of various allegations of misconduct by him. The allegations are set out below:

“It is alleged that on 3 August 2017, in your role as Correctional Officer Grade 3 (CO3), you applied excessive use of force to … [detainee name withheld] and that you failed to comply with relevant use of force policy, procedure and legislation in that you placed her in a leg lock after she had been placed in Cell 1 and was compliant.

It is further alleged that on 3 August 2017, in your role as CO3, you acted inappropriately towards … in that it is alleged that you spoke to … in a derogatory and disrespectful manner and that you threatened physical harm to … [e]xamples of your alleged actions include:

(a) when staff were trying to restrain … you said words to the effect “drag the c..t to the cell, just f....n drag her” or “just f.....g drag the b...h.”

(b) once … was in Cell 1 and compliant, you placed … in a figure four leg lock and said words to the effect “I’m going to break your f.....g legs” or “can you feel that, I will break your f.....g legs if you spit on my officers again” while applying force to her legs.” 2

[7] As a result of the seriousness of the allegations against Mr Frame, Mr Peach also decided to return Mr Frame to his substantive CO3 role at the Alexander Maconochie Centre with effect from 3 November 2017 pending finalisation of the investigation.

[8] The investigation was completed on 18 June 2018 and found that there was sufficient evidence to conclude that on the balance of probabilities the allegations were substantiated. In respect of Allegation 1 regarding Mr Frame’s alleged failure to comply with relevant Use of Force policy, procedure and legislation, the investigation report conclusion included the following:

“On the basis of the information provided, there is sufficient evidence to conclude, on the balance of probabilities that on 3 August 2017 in his role as a Correctional Officer Grade 3 (CO3), Mr Frame applied pressure to ... legs during the application of a figure four leg lock.

However, the finding in relation to this allegation is dependent upon whether you, as the delegate, believe that the amount of pressure applied would fulfil a definition of excessive, being, more than the minimum amount of force that is reasonably necessary in the circumstance.” 3

[9] In subsequent developments, on 28 June 2018 Mr Peach wrote to Mr Frame inter alia advising him of the outcome of the investigation, that he considered there was sufficient evidence to conclude that misconduct had occurred and his proposed disciplinary action. Mr Peach’s letter included the following:

“In accordance with sub-clause H10.1 of the Enterprise Agreement ... I consider the following proposed disciplinary action to be appropriate and proportionate to the degree of misconduct:

•  A written warning and admonishment; and

•  A temporary reduction in increment from a CO3.3 to a CO1.4 until such time you have undertaken Use of Force training (as provided in the Correctional Officer Training course scheduled for later this year).

•  Upon attendance and successful completion of this course you will be permanently placed at the CO2.1 increment level.

If you do not successfully complete the Use of Force training or in the event you are not signed off as competently completing this training, you will remain permanently at the CO1.4 increment.” 4

[10] Mr Peach’s letter invited Mr Frame to provide any response to his proposed finding of misconduct and disciplinary action by 23 July 2018.

[11] Mr Frame responded on 20 August 2018 after his legal representative requested and was provided with copies of a number of documents by the Respondent.

[12] On 10 September 2018, Mr Peach wrote to Mr Frame advising him of his final decision. Mr Peach’s letter included the following:

“Having considered all of the available information relating to this matter, including Mr Gabbedy’s written response on your behalf of 22 August 2018 and attachments, I remain of the view that your actions constitute misconduct and that the proposed disciplinary action outlined above, on page 1, is appropriate and proportionate to the degree of misconduct and forms my final disciplinary decision.” 5

[13] The disciplinary action referred to in the above extract was the same as Mr Peach’s proposed disciplinary action as outlined in his letter of 28 June 2018 (see paragraph [9] above).

[14] On 24 September 2018 Mr Frame’s legal representative initiated an appeal in accordance with clause J2 of the Agreement, with the appeal letter stating among other things:

“The outcomes sought on behalf of Mr Frame are as follows:

1. A reversal of the findings that the two allegations made out against Mr Frame have been substantiated to the requisite degree;

2. A Determination that Mr Frame has been denied natural justice in that [sic] way that Mr Peach has acted as Decision Maker at several levels in respect of the complaint brought against Mr Frame;

3. The revoking of the penalty imposed upon Mr Frame and compensation to him of lost pay and entitlements, as a result of Mr Frame’s being reduced in classification and increment whilst the Appeal is been determined.

4. Reinstatement of Mr Frame at his former classification and increment.” 6

[15] An Appeal Panel was subsequently convened in accordance with clause J3.2 of the Agreement. The Appeal Panel’s report included the following summary of the Panel’s recommendations:

“The Appeal Panel determined the following recommendations:

1. In regard to the review of relevant documentation and evidence, the Appeal Panel determines that the application for appeal should be considered, and as such, the Appeal Panel continued to meet and discuss the evidence

2. In regard to whether the appellant was provided with procedural fairness in the conduct of the investigation and the decision-making process, the Appeal Panel determined that procedural fairness had been afforded to the Appellant throughout the process

3. In regard to whether, on the balance of probabilities, there is sufficient evidence to support the findings of misconduct, the Appeal Panel determined that the evidence was sufficient, on the balance of probabilities.

In all determinations above, the decision of the Appeal Panel was unanimous.

In regard to the decision to take disciplinary action, two of the Panel members formed the view that the sanctions applied were appropriate given the nature of the misconduct and the consequence should it occur again. The third panel member gave a dissenting view with details provided below.

The view of the third panel member was that the sanctions of a warning and written admonishment and the temporary reduction in increment until training was conducted was appropriate.

The third panel member also felt that the reduction in increment for a limited period of time e.g. 18-24 months, was appropriate, however, was concerned about the long-term effect on the Appellant’s pension and superannuation due to the scheme he is on. As the CSS/PSS scheme is based on the last three years of earnings, the penalty appears to have a dual nature on both owned income and long-term superannuation stop.”

[16] The body of the report included the following:

“Based on the information provided to the Appeal Panel, the Panel believes that Mr Frame was afforded procedural fairness and natural justice in regard to the misconduct review, investigation and appeals process, and that there was no evidence of bias in the approach or decision made by Mr Jon Peach.”

[1] [17] On 16 April 2019 Mr Pryce wrote to Mr Frame stating, among other things, that:

“Having carefully considered all of the information before me on this matter, including your response and representations in this matter, I have decided to uphold Mr Peach’s original decision of 10 September 2018, that your actions in relation to Allegations 1 and 2 constitute misconduct. However, after considering the Appeal Panel’s report, your representations and after taking into account your work history and the nature of the allegations, I decided that the following sanctions are appropriate and proportionate to the degree of misconduct:

•  A written warning and admonishment, and

•  A temporary reduction in classification from a CO3.3 to a CO1.4 until such time you have undertaken Use of Force training, and

•  Upon evidence of your successful completion of Use of Force training, you be permanently placed at the CO2.3 classification level.

The reasons for my decision are set out as follows.

...

Allegation 2

I note that the Appeal Panel members determined that, on the balance of probabilities, the evidence provided supported the allegation that you spoke to a detainee in a derogatory and disrespectful manner, and also threatened physical harm to the detainee. I concur with this finding.

In their report, the Appeal Panel members stated that in determining whether you spoke to the detainee in a derogatory and disrespectful manner, they noted your interview statement whereby you acknowledge the use of language, although you state that this language was used as a reference to the detainee, and not spoken at the detainee.

The panel members also noted, amongst other things, that several witness statements from other CO’s in the CTU indicated that you used language considered derogatory and disrespectful and corroborated that, on the balance of probabilities, very strong swearing and derogatory language was used. Whether or not your comments were directed to the detainee, or were made about the detainee (but in hear [sic] presence), the type of language used was unprofessional, disrespectful, derogatory and inappropriate in all the circumstances.

As a senior supervisor of the Court Transport Unit, you have a duty to role model calm and professional behaviours in accordance with ACT Public Service values, albeit often in challenging circumstances. In addition, the use of this type of derogatory language when combined with the application of force upon the detainee only serves to exacerbate and potentially escalate, rather than to de-escalate, the situation.

Summary comments

Your actions with respect to Allegations 1 and 2 were highly inappropriate and is not the behaviour that I would expect of an experienced staff member of ACTCS or the wider ACTPS. Your actions and behaviour also call into question your judgement and ability to effectively and appropriately supervise other ACTCS staff, manage Use of Force situations and supervise vulnerable detainees within a correctional services environment.

As the most senior Correctional Services Officer at the Court Transport Unit, you are required to set an example for all other staff members and should, and a minimum, display the behaviours and uphold the standards as outlined in the PSM Act and the Corrections Management (Use of Force) Policy. You also have a responsibility to set the standard and to lead by example to more junior correctional officers – you failed to do this in these circumstances.

Furthermore, as a Correctional Officer Class 3, you have a role to uphold the Code of Conduct and ACT Public Service values. Not only did your conduct in each of the allegations have the potential to bring ACTCS and the Directorate into disrepute, your actions are also a breach of your obligations as set out at Section 9 of the PSM Act.

For all these reasons and based on the available evidence, I agree with the Appeal Panel’s recommendation and have decided to uphold Mr Peach’s original decision of 10 September 2018 that misconduct has occurred. However ... I have decided to amend the original sanctions as imposed by Mr Peach to the sanctions I have previously outlined.” 7

[18] As previously mentioned, on 23 April 2019 Mr Frame lodged his application under s.739 of the Act. In his application, Mr Frame set out the relief which he was seeking in the following terms:

“I am seeking a review of:

a. The process my employer used to reach its decision that I had breached the Code, given the concerns were raised about the lack of procedural fairness associated with that process, and

b. The decision reached, which is contrary to the only available objective evidence,

c. Sanction imposed, and

d. Reinstatement tomy [sic] former level and category.” 8

The Applicant’s case

[19] Mr Frame submitted that Mr Pryce’s decision of was unjust and/or unreasonable for the following reasons:

•  the findings that he had used excessive force and vile language were based in part on information that was incorrect or had been misconstrued, making the findings unsafe, unjust and unreasonable;

•  the sanctions of a temporary reduction in classification and permanent placement at the CO2.3 increment were not available to the decision-maker as the Agreement did not provide for the imposition of both a temporary and permanent reduction in classification; and

•  the finding that procedural fairness had been afforded to him was not reasonably open to Mr Pryce given the available evidence, making that finding unsafe, unjust and unreasonable.

[20] Among other things, Mr Frame also submitted that:

•  both Mr Pryce and the Appeal Panel appeared to have failed to consider that there needed to be a separation in terms of the person performing the functions of manager and the Delegate of the Head of Service to provide procedural fairness and avoid the perception of bias;

•  the fact that Mr Peach performed both these roles in this case and therefore made both the recommendation and decision to refer the matter for investigation was contrary to policy governing the management of workplace behaviours, i.e. the ACT Public Service Guide to Managing Workplace Behaviour;

•  this problem was further compounded by Mr Peach imposing his own determination in relation to the use of force in circumstances where the investigator was unable to make a finding in respect of Allegation 1;

•  a further lack of procedural fairness arose in circumstances where the Appeal Panel stated in its report that the evidence they took into account in determining whether or not the use of force was excessive included a discussion with Mr Peach, with Mr Frame not provided either the opportunity to respond to any additional material provided by Mr Peach or to clarify any misconception or misunderstanding by the Appeal Panel arising out of that material;

•  both Mr Pryce and the Appeal Panel incorrectly found that he acknowledged the use of vile language in circumstances where he allegedly claimed the language was being used in reference to the detainee rather than spoken directly at the detainee, adding that as a result the finding that Mr Frame was guilty of this allegation was unsafe, unjust and unreasonable; and

•  the decision that Allegation 2 had been made out was based on a clear error in the interpretation of the evidence.

The Respondent’s case

[21] In short, the Respondent submitted that the Commission should not disturb Mr Pryce’s decision. The Respondent further submitted that:

•  Mr Frame had provided insufficient evidence to establish that Mr Pryce’s decision was unjust or unreasonable;

•  having regard to the recommendations of the Appeal Panel and the evidence relied upon in making those recommendations, it was open to Mr Pryce to make the decision that both allegations had been substantiated and that Mr Frame had engaged in misconduct;

•  the sanction imposed by Mr Pryce was commensurate with the misconduct engaged in by Mr Frame and was considered in the context of all relevant mitigating factors; and

•  the sanction was reasonable in all the circumstances, considering Mr Frame’s experience and the management position he held in an area that required the exercise of calm and professional behaviour and the demonstration of good judgement in often challenging circumstances.

[22] In its submissions the Respondent also responded to aspects of Mr Frame’s submissions. In that regard, the Respondent posited among other things that:

•  the Appeal Panel report indicated that the Panel members used a review of CCTV footage as the primary decision as to whether the use of force was excessive, adding that the Appeal Panel observed that the evidence of witness statements tended to suggest that Mr Frame had used language and conduct to escalate the situation;

•  the admission or non-admission of the use of language by Mr Frame was not decisive in the recommendations of the Appeal Panel nor in Mr Pryce’s decision to find Allegation 1 proven;

•  the Appeal Panel report indicated that the weight of the evidence taken as a whole was decisive and reflected a recognition that Mr Frame did not admit to using vile language himself, simply that it may have been used in the incident;

•  the Agreement anticipates the imposition of multiple sanctions, including a temporary and permanent transfer or reduction in classification;

•  the Appeal Panel report acknowledged the roles undertaken by Mr Peach and noted that he was the most appropriate delegate in each instance, pointing out that he had reviewed over 500 matters relating to use of force and had previously held training roles within corrective service organisations associated with use of force practices;

•  there was no requirement in the Agreement for different delegates to be involved at each stage of a disciplinary process;

•  the use of the same delegate as a manager/supervisor and as the Delegate of the Head of Service was a frequent occurrence and did not of itself create any bias or consequent issues with respect to procedural fairness; and

•  it understood that the Appeal Panel had spoken with Mr Peach to obtain a greater understanding of the technical knowledge underpinning his decision and did not involve obtaining any new evidence.

[23] The Respondent in its submissions referred to several authorities in support of its submissions, including the decisions in Christina Towns v Community Services Directorate ACT Government (Towns) 9, Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (XPT Case)10, Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union (Lend Lease)11and Mr Gareth Lloyd v Australia Western Australian Railroad Pty Ltd T/A ARG an Aurizon Company12.

The Relevant Clauses of the Agreement

[24] The relevant provisions of the Agreement are set out below.

G2 DISPUTE AVOIDANCE/SETTLEMENT PROCEDURES

G2.1 The objective of these procedures is the prevention and resolution of disputes about:

a) matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement; and

b) the application of the National Employment Standards.

…

G2.4 An employee who is a party to the dispute may appoint a representative, which may be a relevant union, for the purposes of the procedures of this clause.

…

G2.6 Where appropriate, the relevant employee or the employee’s representative will discuss the matter with the employee’s supervisor. Should the dispute not be resolved, it will proceed to the appropriate management level for resolution.

G2.7 In instances where the dispute remains unresolved, the next appropriate level of management, the employee, the union or other employee representative will be notified and a meeting will be arranged at which a course of action for resolution of the dispute will be discussed.

G2.8 If the dispute remains unresolved after this procedure, a party to the dispute may refer the matter to the FWC.

G2.9 The FWC may deal with the dispute in two stages:

a) the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

b) if the FWC is unable to resolve the dispute at this first stage, the FWC may then:

i. arbitrate the dispute; and

ii. make a determination that is binding on the parties.

G2.10 The FWC may exercise any powers it has under the FW Act as are necessary for the just resolution or determination of the dispute.

...

H10 DISCIPLINARY ACTION AND SANCTIONS

H10.1 In circumstances where the head of service, following an investigation or full admission by the employee, determines that misconduct has occurred, and the head of service considers disciplinary action is appropriate, one or more of the following sanctions may be taken in relation to the employee:

a) a written warning and admonishment;

b) a financial penalty which can:

i. reduce the employee’s incremental level,

ii. defer the employee’s incremental advancement,

iii. impose a fine on the employee,

iv. fully or partially reimburse the employer for damage wilfully incurred to property or equipment;

c) transfer the employee temporarily or permanently to another position at level or to a lower classification level;

d) remove any monetary benefit derived through an existing Attraction and Retention Incentive (or existing SEA);

e) termination of employment.

H10.2 In relation to paragraph H10.1(c), if an employee’s classification is reduced as a result of disciplinary action, service before the demotion is not counted towards an increment for any higher duties the employee performs after demotion.

H10.3 Sanctions imposed under these procedures must be proportionate to the degree of misconduct concerned. In determining the appropriate sanction, the following factors must be considered:

a) the nature and seriousness of the misconduct;

b) the degree of relevance to the employee’s duties or to the reputation of the Directorate or the ACTPS;

c) the circumstances of the misconduct;

d) any mitigating factors, including any full admission of guilt; and

e) the previous employment history and the general conduct of the employee.

H10.4 Before taking disciplinary action, the head of service will advise the employee in writing of:

a) the decision that misconduct has been found to have occurred; and

b) the reasons for arriving at this decision; and

c) the sanction proposed; and

d) the period during which the employee has to respond to the proposed disciplinary action (which must be a minimum of fourteen calendar days).

H10.5 After considering the employee’s response to the proposed action, or if the employee has not responded at any time after the period outlined in paragraph H10.4 (d) has lapsed, the head of service may take disciplinary action. The head of service will inform the employee in writing of:

a) the final decision regarding disciplinary action to be taken; and

b) the date of effect and/or, if relevant, the cessation of the action; and

c) the appeal mechanisms that are available under this Agreement.

H12 RIGHT OF APPEAL

H12.1 An employee has the right under Section J to appeal against any decision to take disciplinary action or to apply a sanction under subclause H10.1, or against any decision taken under clause H8 to suspend the employee without pay, or to transfer the employee at reduced pay, except action to terminate the employee’s employment.

H12.2 An employee may have an entitlement to bring an action under the FW Act in respect of any decision under this Section to terminate the employee’s employment. This will be the sole right of review of such a decision.

H12.3 The appeal procedures under Section H apply to the exclusion of the rights of appeal and review under the PSM Act 1994 and the internal review procedures contained in Section I of this Agreement.

Section J - Appeal Mechanism

J1 OBJECTIVE AND APPLICATION

J1.1 This Section sets out an appeal mechanism for an employee where the employee (referred to in this section as “the appellant”) is not satisfied with the outcome of decisions described in the following clause.

J1.2 This appeal mechanism will apply to:

a) …

d) decisions to take disciplinary action under subclause H10.1 of this Agreement, except a decision to terminate the employee’s employment; …

J2 INITIATING AN APPEAL

J2.1 An employee, or the employee’s union or other employee representative on the employee’s behalf, may initiate an appeal under these procedures by making an application to the Convenor of Appeal Panels that:

a) is in writing; and

b) describes the decision or action taken or to be taken, the reasons for the application and the outcome sought; and

c) is received by the Convenor of Appeal Panels within fourteen calendar days of being notified of the decision to take the action.

J2.2 For the purposes of paragraph J2.1(b), a decision must be an appealable decision as set out in subclause J1.2.

J3 COMPOSITION OF THE APPEAL PANEL

…

J3.2 Where an application is received by the Convenor of the Appeal Panel in accordance with the requirements set out in subclause J2.1 and J2.2 the Convenor of Appeal Panels will set up an Appeal Panel.

…

J4 POWERS AND ROLE OF THE APPEAL PANEL

J4.1 In considering an application, the Appeal Panel must have due regard to the principles of natural justice and procedural fairness. Proceedings of the Appeal Panel are to be conducted as quickly as practicable consistent with a fair and proper consideration of the issues.

…

J4.3 The Appeal Panel will have the discretion to decide not to conduct a review of the appeal application, or, if it has commenced reviewing the application, to decide not to proceed further if, in the opinion of the Panel:

a) the application is frivolous or vexatious, or not made in good faith; or

b) the employee making the appeal may apply to another person or authority about the application who may more appropriately deal with the action; or

c) further review of the application is not warranted.

…

J4.6 Where the Appeal Panel determines that an application for appeal requires further consideration, the Appeal Panel will conduct a procedural review on the papers to determine whether:

a) it was open to the head of service to take the action that he or she did;

b) the principles of procedural fairness and natural justice were complied with in taking the original action or decision; and

c) the final decision of the head of service was appropriate in all of the circumstances.

J4.7 The Appeal Panel must be provided with all relevant information and evidence that was available to the decision-maker in the making of the original decision or in taking the original action. To ensure efficiency and timeliness, the Appeal Panel should not undertake to collect the same information or new evidence.

J4.8 Where the Appeal Panel is satisfied that a fundamental piece of evidence was not considered in the original process, the Appeal Panel may recommend to the head of service that the matter be referred back to the original decision-maker for further investigation.

…

J4.10 After reviewing any application under this section, other than an appeal about promotion or temporary transfer to a higher office or role, the Appeal Panel will, subject to subclause J4.8, make a written report containing recommendations to the head of service. A copy of the report will be provided to the appellant.

…

J4.12 The head of service, after considering the report from an Appeal Panel under subclause J4.10, will make a decision on any recommendation in the report and inform the appellant in writing of the reasons for that decision, within fourteen calendar days of receiving the report.

…

J4.15 The head of service, after considering the report from the Commissioner for Public Administration, may:

a) accept any or all of the report’s recommendation(s) and take such action as necessary to implement the recommendation(s); or

b) not accept the report’s recommendation(s) and confirm the original action.

…

J6 RIGHT OF EXTERNAL REVIEW

J6.1 The employee, or the employee’s union or other employee representative on the employee’s behalf, may seek a review by the FWC of a decision of the head of service under subclause J4.12 or subclause J4.15.

J6.2 The FWC will be empowered to resolve the matter in accordance with the powers and functions set out in clause G2 of this Agreement. The decision of the FWC will be binding, subject to any rights of appeal against the decision to a Full Bench in accordance with clause G2.15.”

Consideration of the issues

[25] The task of the Commission in respect of a review under clause J6 of the Agreement (which is a common provision in ACT public sector enterprise agreements) was described in Towns 13 in the following terms:

“[23] … clause J6.2 of the Agreement empowers the Commission to review a decision of the head of service under clause J4.12 of the Agreement. Clause J4.12 refers to the head of service’s decision in respect of any recommendation in a report from an Appeal Panel under clause J4.10 of the Agreement. Accordingly, as stated in Boxsell, a review under clause J6.2 of the Agreement is not a review of the Appeal Panel’s findings/recommendation(s) but rather a review of the decision maker’s decision in respect of the Appeal Panel’s recommendation(s). In other words, a review under clause J6.2 of the Agreement is not a review de novo.” 14

[26] In considering Mr Frame’s application I will follow the approach set out in Towns, though in doing so it will at times be necessary to traverse the Appeal Panel’s findings in some detail.

[27] Dealing initially with Mr Frame’s submissions regarding Allegation 2, I note firstly that Mr Frame’s interview statement includes the following:

“MR FRAME: I saw it here, Two bits of paper. So I spoke to … in a derogatory, disrespectful manner? So what’s said here is alleged to have been said by me, which I deny, is not being said to … If that’s the language being used, that’s the language being used to the staff.

MS MCAULIFFE [the investigator]: I see the point that you are making.

MR FRAME: Yes, yes, so I’m saying I didn’t – I didn’t say it. Did I say…

MR GIBSON [Mr Frame’s support person]: You’re saying the allegation’s wrong because it’s saying in the allegation – I think what you’re saying …

MS MCAULIFFE: So it should be about her, rather than to her?

MR GIBSON: Well, you’re saying…

MS MCAULIFFE: … (Indistinct) …

MR FRAME: Yes, yes.

MR GIBSON: So there’s no derogatory comment towards to her.

MR FRAME: Yes ...

MR FRAME: I may have said, ‘Drag her if we have two,’ ...”

[28] I also note that the Appeal Panel report includes the following consideration in respect of Allegation 2:

“In determining whether the Appellant spoke to the detainee in a derogatory and disrespectful manner, we note that the Appellant’s own interview statement acknowledges the use of vile language, although he states that this language was used as a reference to the detainee, not spoken at the detainee.

Several witness statements from other Corrections Officers in the CTU indicate that the Appellant used language considered derogatory and disrespectful.

...

On the balance of probabilities, the Appeal Panel members note that the witness statements generally corroborate that very strong swearing and derogatory language were used.

...

Witness statements suggest that rather than model of the ideal behaviours of a Corrections Officer, the Appellant addressed the detainee in an aggressive, angry manner, akin to picking a fight. The use of vile and excessive language continues throughout the situation … These threats continue in Cell 1 despite the appearance that the detainee had calmed down and was no longer struggling. While the Appellant himself claims to have not used such language, and claims use in a different context, there is evidence to the contrary by a number of witnesses.

...

On the balance of probabilities, the evidence provided to the Appeal Panel has been assessed as demonstrating that the Appellant spoke to a detainee in a derogatory and disrespectful manner and threatened physical harm to the detainee.” (Emphasis as per original, underlining added)

[29] Also relevant is the following aspect of the Appeal Panel report in respect of Allegation 1:

“The use of language such as “can you feel that, I will break your f....n legs if you spit on my officers again” and other witness statements suggesting that the Appellant threatened the detainee with repeated statements that he was going to “break her f.....g legs” is, the Appeal members concluded, indicative that the Appellant was not in control of the situation, and was escalating, rather than de-escalating the situation ...

... Furthermore, evidence was provided by witnesses who stated that the Appellant caused the situation to escalate, and that he is prone to losing his temper and swearing. Indeed, the Appeals Panel concluded that there appeared to be an element of retaliation toward the detainee in the conduct of the Appellant ...”

[30] The above extracts from the Appeal Panel report, particularly the underlined text in the extract at paragraph [28] above, indicate that the Panel acknowledged Mr Frame’s claim that he did not use “vile and excessive language” statement but concluded, based on all the material before it, that Mr Frame did swear when applying the leg lock to the detainee. While the Appeal Panel’s reference to Mr Frame’s interview statement misinterprets what appears to be his somewhat confused statement on the issue, it does not appear to be determinative in the Panel finding that Allegation 2 had been made out. More importantly, in the context of the matter presently before the Commission, an objective reading of Mr Pryce’s letter of 16 April 2019 (see paragraph [17] above) is that his decision that Allegation 2 had been made out was based on a holistic assessment of the Appeal Panel report and material before him. The reference to the Appeal Panel’s statement regarding Mr Frame’s interview statement in Mr Pryce’s letter was not in my view determinative in him reaching the conclusion he came to, with the “Summary comments” section of Mr Pryce’s letter clearly setting out the reasons for his decision.

[31] I therefore do not consider Mr Frame’s contention that the finding in respect of Allegation 2 was unsafe, unjust and unreasonable or that it was based on a clear error in the interpretation of the evidence is made out.

[32] Similarly, the holistic approach of both the Appeal Panel and Mr Pryce in determining that Allegation 1 was made out does not support a finding that their respective findings regarding Allegation 1 were based in part on information that was incorrect or had been misconstrued. In particular, I note that neither the Appeal Panel Report nor Mr Pryce’s letter of 16 April 2019 refer to or draw on Mr Frame’s interview statement in concluding that Allegation 1 was made out. As such, I do not consider Mr Frame’s contention that the finding in respect of Allegation 1 was unsafe, unjust and unreasonable is substantiated.

[33] Mr Frame’s procedural fairness argument is premised on two grounds:

1. the involvement of Mr Peach as the manager/supervisor that recommended the incident of 3 August 2017 be referred for investigation and as the Delegate of the Head of Service who both decided to refer the matter for investigation and determined whether misconduct had occurred and the sanction to be imposed; and

2. the failure of the Appeal Panel to disclose to Mr Frame and provide him with the opportunity to comment on the information and any material provided to it by Mr Peach and the Respondent’s Human Resources team.

[34] As to the first of those grounds, I note that the Agreement does not require that the manager/supervisor and Delegate of the Head of Service be different persons. I also note that the ACT Public Service Guide to Managing Workplace Behaviour at Appendix 1 describes procedural fairness in the following terms:

“In the context of alleged misconduct ... procedural fairness requires that:

a) The employee you made aware of the allegations in the process to be followed in investigating those allegations;

b) the investigator provide the employee with an opportunity to comment on all evidence that is credible, relevant and significant;

c) that the investigator conduct the fact-finding process with an open mind, free from bias or other interest in the outcome of the process;

d) that the delegate be similarly unbiased and free from any interest in the outcome of the process; and

e) that the delegate offer the employee an opportunity to comment on the proposed findings as to misconduct and any proposed sanction before making a final decision.”

[35] There is nothing in the material before the Commission suggesting that the Respondent did not meet the abovementioned description/requirements in respect of procedural fairness, While Mr Frame in his submissions alludes to a perception of bias and apprehension of bias he does not set out why a fair-minded lay observer would reasonably apprehend that Mr Peach would not bring an objective mind to determining whether the allegations had been made out and the sanctions to be imposed.

[36] In respect of the second ground relied upon by Mr Frame, I note that:

•  clause J4.7 of the Agreement provides that “the Appeal Panel should not undertake to collect the same information or new evidence” (underlining added); and

•  the Appeal Panel acknowledged in its report that the Panel spoke to the Respondent’s “Human Resources team regarding the use of force training’ and Mr Peach “regarding the basis of his decision”;

[37] While I think it would have undoubtedly been prudent for the Appeal Panel to have alerted Mr Frame of its intention to speak to Mr Peach and the Respondent’s Human Resources team, particularly given clause J4.7 of the Agreement, the Panel’s failure to do so does not of itself mean that its conclusions/recommendations are automatically vitiated on procedural fairness grounds. In that regard I note that the Appeal Panel Reports states inter alia that:

“The Appeal Panel used the review of CCTV Footage as the primary decision on whether the use of force appeared excessive.” 15

[38] The Report also states that:

“The Panel noted that in their view, additional training regarding tolerance, inclusion and diversity should have been recommended as a means to educate the appellant regarding treating all persons with respect irrespective of their differences.

The Panel note that discussions with the Directorate advised that this training is being developed for all staff within ACT Corrective Services, and that the appellant will be required to complete this training together with all other staff once it is finalised.” 16

[39] The above extracts from the Report do not point to the Appeal Panel’s findings having either been predicated on evidence or material that was not available to Mr Frame or that Mr Frame was disadvantaged as a result of the Panel’s discussions with Mr Peach and the Respondent’s Human Resources team.

[40] More importantly, there is nothing in Mr Pryce’s letter which suggests that his decision was in any way premised on extraneous material that was not available to Mr Frame.

[41] The above analysis does not support a finding that either of Mr Frame’s procedural fairness grounds have been made out.

[42] Finally, I deal with Mr Frame’s contention that the Agreement provides for either the temporary transfer of an employee to a lower classification level or a permanent traffic transfer to a lower level but not both. Initially, I note that this contention does not appear to have been previously raised by Mr Frame. As stated in Towns, a review under clause J6.2 of the Agreement “is not a review de novo”. While I note the Respondent’s submission that the Agreement contemplates one or more of the sanctions set out in clause H10.1, nowhere in the material before the Commission is the rationale for the temporary demotion to the CO1.4 pending completion of the Use of Force training set out. In the absence of anything contrary in either the Agreement or the Corrections Management Act 2007 (ACT) and associated policy and procedure, it is assumed that all ACT Correctional Officers need to be appropriately trained in the Use of Force. In those circumstances the temporary demotion to the CO1.4 level appears overly harsh and unreasonable, given that it involves a reduction in pay of around $20,000 per annum or just over 20 per cent of the rate of pay specified in the Agreement for a CO3.3 employee (as at 6 April 2017). To the extent that the temporary reduction in classification was designed to ensure that Mr Frame completed the Use of Force training, I note that clause M17.5 of the Agreement which deals with Mandatory Qualifications and Training provides that all Correctional Officers Grade 1-3 must be assessed annually as competent in a number of areas including knowledge of processes and procedures, with the latter presumably including the Use of Force policy and procedure.

[43] Beyond that however, I consider Mr Pryce’s decision in respect of sanction to be both appropriate and reasonable in circumstances where the allegations against Mr Frame were made out and having regard to the supervisory responsibilities attached to Mr Frame’s CO3 role with the Court Transport Unit.

[44] Against that background, I therefore propose to vary the sanction imposed by Mr Pryce so that it provides for a written warning and admonishment, a reduction in classification to the CO2.3 classification level and a requirement that Mr Frame undertake and complete Use of Force training. The reduction in classification to the CO2.3 classification level entails a reduction in pay of almost $11,500 per annum (a reduction of over 12 per cent based on the April 2017 rates of pay specified in the Agreement). I consider such a reduction in classification to be more appropriately commensurate with the nature of Mr Frame’s misconduct.

[45] Given the above, it is not necessary for the Commission to determine whether or not the Agreement permits the imposition of a sanction which involves both a temporary and permanent reduction in classification.

[46] As previously mentioned, the Respondent in its submissions referred to the decisions in Towns, the XPT Case and Lend Lease. Those latter two decisions consider the circumstances in which the Commission might interfere with an employer’s right to manage their business. More specifically, I note that the Full Bench in Lend Lease referred to the decisionthe XPT Case in the following way:

“[26] The principle stated in the XPT Case was as follows:

‘It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.’

[27] It may be accepted that the above principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer.” 17 (Underling added, endnotes not included)

[47] Drawing on the language in the XPT Case, the above analysis of the circumstances in this case does not point to anything unjust of unreasonable in Mr Pryce’s findings regarding misconduct. Further, for the reasons outlined above I do not consider that Mr Frame’s various concerns regarding that aspect of the decision are made out. However, for the previously outlined reasons, I consider one aspect of the sanction determined by Mr Pryce to be overly harsh and unreasonable, i.e. the decision to temporarily reduce Mr Frame to the CO1.4 classification level pending his successful completion of Use of Force training. Accordingly, I have decided to vary the sanction to be applied in the terms previously outlined.

Conclusion

[48] For all the above reasons, I have concluded that the sanction determined by the Delegate of the Head of Service should be amended such that Mr Frame be demoted to the Correction Officer Class 2.3 classification level and be required to undertake and complete Use of Force training but that otherwise the Delegate’s decision should not be disturbed.

Printed by authority of the Commonwealth Government Printer

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 1   AE414649

 2   Outline of Respondent’s Submissions at Attachment (c)(i)a to Annexure 1

 3   Ibid at page unnumbered page before page 15 of Investigation Report – Ian Frame Correctional Officer Level 3 Justice and Community Services Directorate – June 2018

 4   Applicant’s Submissions at Attachment d

 5   Ibid at Attachment c

 6   Outline of Respondent’s Submissions at Attachment (b) to Annexure 1

 7   Ibid at Attachment (c)(i) to Annexure 1

 8   Form F10 – Application for the Commission to deal with the dispute in accordance with a dispute settlement procedure at Question 3.1

 9   [2018] FWC 4271

 10 (1984) 295 CAR 188

 11   [2015] FWCFB 1889

 12   [2017] FWCFB 143

 13   [2018] FWC 4271

 14   Ibid at [23]

 15   Appeal Panel report at page 12

 16   Ibid at page 18

 17   [2015] FWCFB 1889